Posts Tagged ‘prosecution’

“Plea Bargaining: Good Policy or Good Riddance?”

Cato held a conference on plea bargaining last month:

Today, more than 95 percent of criminal convictions in the United States are obtained through plea bargains. As the Supreme Court observed in 2012, “criminal justice today is for the most part a system of pleas, not a system of trials.” Compared with jury trials, plea bargains are efficient and inexpensive, and they free up resources that might otherwise be devoted to securing convictions in cases where the defendant’s guilt is not seriously in doubt.

But plea bargaining has a dark side as well. Given the imbalance of resources between prosecutors and most defendants, together with the array of tools that prosecutors can bring to bear in any given case, such as mandatory minimum sentences, charge-stacking, and witness inducements, it is fair to ask how many guilty pleas are truly voluntary. A growing body of evidence suggests that false confessions may not be nearly as rare as we would hope, and indeed the specter of coercion casts a shadow over the entire plea-bargaining process.

The panel featured the Hon. Joseph Goodwin, a federal judge in West Virginia who has announced that he would no longer accept plea bargains except when there are truly extenuating, case-specific circumstances; New York City criminal defense attorney and popular law blogger Scott Greenfield, and University of Illinois law Prof. Suja Thomas, with Cato’s Clark Neily moderating. You can watch or download it here.

Crime and punishment roundup

  • Why Baltimore’s Civilian Review Board hasn’t done much to fix its police crisis [J.F. Meils, Capitol News Service/Maryland Reporter]
  • Three prosecutors with high national profiles who’ve put up dogged, maybe too dogged, resistance to actual-innocence claims [Lara Bazelon, Slate]
  • Carceral liberalism: Advocates press to do away with statute of limitations for sex assault prosecutions [Scott Greenfield]
  • “No charges have been filed against the cops. All of the officers involved are still employed by the department.” [Christina Carrega, New York Daily News on nearly $1 million award to Oliver Wiggins, unsuccessfully framed for DWI after police car ran stop sign and crashed into his vehicle]
  • Founding-era views of duty-to-retreat vs. stand-your-ground might be more complicated than you think [Eugene Volokh]
  • The trial penalty “is among the most important features of America’s criminal justice system, and yet there is no reference to it in the Constitution” [Clark Neily, Cato]

Crime and punishment roundup

  • Fiasco of Cliven Bundy prosecution points up that even those who break the law are entitled to a fair trial. “In the Bundy case, Judge Navarro slammed the FBI for withholding key evidence. Unfortunately, this seems to be standard procedure for the FBI.” [James Bovard, USA Today; Mark Joseph Stern, Slate; earlier]
  • Don’t undermine structural protection Double Jeopardy Clause provides against prosecutorial overreach [Jay Schweikert on Cato amicus brief in Currier v. Virginia] Case gives SCOTUS chance to reconsider “dual sovereignty” exception to Double Jeopardy Clause [Ilya Shapiro on Cato certiorari brief in Gamble v. U.S.]
  • “The room he was in happened to fall within 572 feet of a park and 872 feet of a school,” within the 1000 feet set by Tennessee law, result misery [C.J. Ciaramella and Lauren Krisai, Reason (“Drug-free school zone laws are rarely if ever used to prosecute sales of drugs to minors. Such cases are largely a figment of our popular imagination.”)]
  • Missed last spring: this challenge to the “Standard Story” of mass incarceration [Adam Gopnik on John Pfaff’s “Locked In”]
  • Ignorance of the law is no excuse. But with law having proliferated beyond anyone’s grasp, perhaps it should be? [Stephen Carter, Bloomberg, earlier]
  • Another study finds decriminalizing prostitution reduces sexual abuse and rape [Alex Tabarrok]

Crime and punishment roundup

  • Drivers’ license should signify ability to drive motor vehicle safely. Denial for miscellaneous arm-twisting reasons – e.g. child support – is bad policy. [Beth Schwartzapfel, Marshall Project (“43 states suspend driver’s licenses for unpaid court debts, but only four require a hearing beforehand to determine whether the failure to pay is willful or simply a reflection of poverty.”); Jessica Silver-Greenberg, Stacy Cowley and Natalie Kitroeff, NYT (“Twenty states suspend people’s professional or driver’s licenses if they fall behind on [student] loan payments, according to records obtained by The New York Times.”)] Earlier here (tax delinquents in New York), here, here, here, etc.;
  • Under centuries of precedent, bail must be individualized as well as not excessive [Ilya Shapiro on Cato amicus in Walker v. City of Calhoun, Eleventh Circuit] And my piece on Maryland’s botched bail reform is now available ungated at Cato;
  • Harvey Silverglate recounts an old tale of prosecutorial entrapment — starring Robert Mueller, then acting U.S. Attorney in Boston [WGBH]
  • Criminal justice, mass incarceration, and the libertarian cause: Radley Balko’s speech on winning Bastiat Award [Reason]
  • “The Troubling Expansion Of The Criminal Offense Of Obstructing The IRS” [Kathryn Ward Booth, Vanderbilt Law]
  • Murder rap for drug supplier after overdose distorts both criminal law principle and incentives [Scott Greenfield, earlier here and here, see also here and here (prescribing doctors)]

Banking and finance roundup

When prosecutors team up, and when they don’t

I’m in today’s New York Post. Excerpt:

“Mueller teams up with New York attorney general in Manafort probe,” Politico reported Wednesday. Commentators went wild.

What could be more exciting than for the special counsel investigating the Russian matter to team up with noted Trump foe Eric Schneiderman? Neither the president nor Congress can lay a glove on him; some of the legal weapons he wields go beyond what Mueller has at his disposal; and if Schneiderman obtains convictions in state court, Trump will have no pardon power. It’s like two superheroes with coordinating capes and powers!

Around liberal Twitter, it was a total game changer. “THIS IS BIG!!!!!!” typed Amy Siskind of New Agenda, hailing the sort of news for which four or five exclamation points won’t do. “What’s Russian for ‘Trump’s goose is cooked?’” crowed Harvard’s Laurence Tribe.

In the opposite camp, the Trumpian claque at Breitbart argued that with the combative New York AG on board — Schneiderman has long feuded with Trump, and is widely disliked by Republicans — the whole Russian probe can be dismissed as tainted. The connection “undermin[es] the integrity and impartiality of Mueller’s inquiry,” wrote Joel Pollak. “There could not be a more inappropriate person to be seen working with Mueller.”

Both sides should calm down….Federal and state prosecutors are supposed to cooperate when investigations overlap. That’s what they do.

I go on to discuss sharing of grand jury information, the ripples of dismay sent by Trump’s Joe Arpaio pardon (on which more from Josh Blackman here, see also and earlier), and New York’s Martin Act. Whole thing here.

Crime and punishment roundup

  • Clark Neily, who spent 17 years at the Institute for Justice and is the author of the constitutional law book Terms of Engagement, joins Cato as vice president for criminal justice [Cato press release]
  • California is among 29 states that revoke drivers’ licenses for failure to pay tickets, which can knock poorer persons out of the workforce over minor offenses [Maura Ewing, The Atlantic]
  • It’s quite rare for prosecutors to file felony charges against public defenders — unless you’re in New Orleans [The Guardian] “Jefferson Parish prosecutors used fake subpoenas similar to those in New Orleans” [Charles Maldonado, The Lens]
  • To explain America’s love affair with incarceration, look first to ideology not race [Thaddeus Russell, Reason]
  • North Carolina law bans persons on sex offender registry from using social media. Constitutional? [Federalist Society podcast with Ilya Shapiro, Cato on Supreme Court case of Packingham v. North Carolina, more on sex offender registries]
  • Judge orders D.A. to return life savings seized from legal medical cannabis business owners; no charges had been brought [Institute for Justice press release] D.A. then files charges against him and his attorney [NBC San Diego]